Judge's ruling awaited in plan to continue House recount

Nov. 21—CONCORD — A Superior Court judge will decide soon whether to grant Secretary of State David Scanlan's wish to resume the recount of a state representative race in Manchester Ward 6 or confirm Democrat Maxine Mosley as the winner by one vote.

Given the stakes, the losing side may appeal the ruling to the state Supreme Court.

The makeup of the New Hampshire House after recounts to date is 200 Republicans, 199 Democrats and one tie yet to be broken.

Bill Christie, the lawyer for New Hampshire Democratic Party, said if Scanlan's bid to continue the recount is successful, it will lead to endless litigation over close elections in the future.

"Their presumption is they want to keep counting until the Republican wins," Christie argued.

That claim was countered by former House Speaker Bill O'Brien, one of the lawyers representing Republican candidate Larry Gagne, who won his seat Nov. 8 but lost to Mosley during the recount.

O'Brien charged that Democrats are embracing "voter suppression" when evidence suggests not all the ballots were included in the recount.

"I hadn't seen voter suppression in New Hampshire until today at this hearing," O'Brien told reporters.

Both sides argued for more than 90 minutes before Justice Amy Ignatius in Merrimack County Superior Court.

After last Monday's recount, Mosley, a retired school counselor, edged incumbent Rep. Gagne for one of two House seats in Hillsborough County House District 16.

On Nov. 8, Gagne beat Mosley by 23 votes.

The top-placing finisher in this race, Republican Rep. Will Infantine, ended with 18 fewer votes after the recount, while Gagne's total dropped by 22 votes.

Mosley picked up two votes in the recount.

On Thursday, Scanlan announced he would continue the recount because of his "uncertainty" that all the ballots had been counted.

The Democrats then went to court, insisting that Scanlan's plan would amount to a second recount, which is illegal under state election law.

Myles Matteson, deputy general counsel representing Scanlan's office, said Scanlan believes that recount officials did not properly account for a stack of ballots cast for Republican candidates.

This is the first election dealing with two new laws.

One law requires a separate accounting and recordkeeping for "over votes," when a voter selects more candidates than allowed for an office, and "under votes," when voters pick fewer candidates than allowed.

The second law mandates post-election audits in 10 random state representative districts to examine the votes for a different office for comparison purposes.

Scanlan directed Manchester Ward 6 be chosen for an audit last Tuesday the morning after the state representative recount.

The audit of the governor's race in Manchester Ward 6 found a different number of ballots cast than the number reported on Election Night and the number reported during the recount.

"The practice has changed because there are new requirements, a new secretary of state and new law," Matteson said.

Christie said no proof of uncounted ballots exists, and variations are common during recounts.

"You could count these ballots 10 times and I will bet you would come up with 10 different results," Christie said.

Candidates requested recounting 28 races for House seats, a modern-day record.

If the judge approves Scanlan's plan, the Ward 6 recount will continue Tuesday.

Scanlan said he wants to complete all recounts by Wednesday.

Orientation for new House members begins next Tuesday.

The newly elected House and Senate will each meet for the first time Dec. 7.